At the October 5 Milbank Tweed Forum, Professor Samuel Rascoff, faculty director at the Center on Law and Security, moderated the panel “The State of the Threat: Ten Years After 9/11, Who Threatens Our Way of Life Most—Al Qaeda or Uncle Sam?” Panelists Jameel Jaffer, director of the ACLU’s National Security Project, and Michael Leiter, former director of the National Counterterrorism Center during the George W. Bush and Obama administrations, debated issues involving the tension between national security and civil liberties. Rascoff described Jaffer and Leiter as “the ACLU’s top person on national security and the president’s top spy on issues of counterterrorism until recently,” and, naturally, differences emerged.

Leiter, who recently became a CLS scholar-in-residence, argued that national security law was ripe for executive interpretation and discretion: “In counterterrorism, the clarity or lack thereof is really striking. And the law, whether it is international public law, constitutional law, statutory provisions, common law—is rarely dispositive.... Much of what has to be done in this realm must remain secret and out of the completely open public eye.”

He nevertheless acknowledged the importance of opposing voices: “Jameel serves a critical purpose: arguing for greater openness, pushing the envelope to try to achieve greater openness, and by doing so, I hope, providing a greater assurance to the public that the government does not run amok and do anything it wants to do. It provides a sense of trust that the government is not unchecked.”

While Leiter agreed with some of the limitations on executive power that Jaffer supported, he differed on the degree and nature of those limitations. And on the matter of withholding information, Leiter took a strong stance: “I’m not sure I agree that secrecy should be limited. I actually think secrecy, in many cases, can be maximized as long as there are legitimate democratic oversight mechanisms.”

Asked to comment on the controversy over Yemeni-American Anwar al-Awlaki’s recent targeted drone killing in Yemen, Jaffer said he didn’t have enough information to address it specifically. But he raised general concerns about the CIA’s targeted killing program. It should be implemented, he said, only in “narrowly circumscribed situations,” when a target “presents a concrete, specific, and imminent threat.” Outside of that, he said, judicial oversight should exist.

Alluding to an unsuccessful suit brought by al-Awlaki’s father to remove al-Awlaki from the targeted killing list, Leiter said, “That is still oversight. It may not be the substantive oversight one desires, but it is involving another branch of government and that branch of government saying, ‘Nope, this isn’t one for us.’” (A judge in the U.S. District Court for the District of Columbia dismissed the case for lack of both legal standing and justiciability, holding that the matter involved a political rather than a legal question.)

In response to Leiter’s claim, Jaffer said, “It’s an odd thing to call this judicial oversight. People walk into the court and the court says, ‘You shouldn’t be here.’ That’s not oversight.” Jaffer later added, “I cannot think of any historical precedent for the targeted killing of a U.S. citizen, let alone one who is far from any battlefield.... The power to kill any U.S. citizen who is deemed to be a threat to the country without judicial oversight of any kind is a sweeping power, and I think it’s a mistake to invest it in any president.”